Citation Nr: 0305315
Decision Date: 03/21/03 Archive Date: 04/03/03
DOCKET NO. 00-14 424 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New York,
New York
THE ISSUES
1. Entitlement to service connection for post-traumatic
stress disorder (PTSD) for the purpose of accrued benefits.
2. Entitlement to accrued benefits on the basis of clear and
unmistakable error in an April 1996 rating decision that
denied service connection for PTSD.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
T. S. Kelly, Counsel
INTRODUCTION
The veteran served on active duty from January 1969 to
January 1971. He died in May 1998.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a June 1999 rating determination of
the New York Department of Veterans Affairs (VA) Regional
Office (RO).
FINDINGS OF FACT
1. The veteran died in May 1998.
2. The appellant was married to the veteran at the time of
his death.
3. The veteran had a pending claim for service connection
for PTSD at the time of his death.
4. PTSD was attributable to incidents of service.
5. An unappealed April 1996 rating determination denied
service connection for PTSD.
6. The appellant filed the current claim for service
connection for PTSD for accrued benefits purposes on the
basis of clear and unmistakable error (CUE) in November 1998.
CONCLUSIONS OF LAW
1. The criteria for entitlement to service connection for
PTSD, for the purpose of accrued benefits, have been met. 38
U.S.C.A. §§ 1110, 5121 (West 2002); 38 C.F.R. §§ 3.304,
3.1000 (2002).
2. A claim of clear and unmistakable error in a disability
compensation determination does not survive the veteran's
death. 38 U.S.C.A. §§ 5109A, 5112, 5121 (West 2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
There has been a significant change in the law during the
pendency of this appeal with the enactment of the Veterans
Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475,
114 Stat. 2096 (2000). The law and regulations eliminate the
concept of a well-grounded claim, redefine the obligations of
VA with respect to the duty to assist, and supersede the
decision of the United States Court of Appeals for Veterans
Claims in Morton v. West, 12 Vet. App. 477 (1999), withdrawn
sub nom. Morton v. Gober, 14 Vet. App. 174 (2000) (per curiam
order) (holding that VA cannot assist in the development of a
claim that is not well grounded). The new law also includes
an enhanced duty to notify a claimant as to the information
and evidence necessary to substantiate a claim for VA
benefits. See 66 Fed. Reg. 45,620 (Aug. 29, 2001)(to be
codified as amended at 38 C.F.R. §§ 3.156, 3.159). See also
Quartuccio v. Principi, 16 Vet. App. 183 (2002). Hereinafter
known collectively as VCAA.
The VCAA is applicable to all claims filed on or after the
date of enactment, November 9, 2000, or filed before the date
of enactment and not yet final as of that date. Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, § 7,
subpart (a), 114 Stat. 2096, 2099 (2000). See also Karnas v.
Derwinski, 1 Vet. App. 308 (1991). In this case, VA's duties
have been fulfilled.
First, VA has a duty to notify the appellant and her
representative, if represented, of any information and
evidence needed to substantiate and complete a claim. The
Board concludes the discussions in the June 1999 rating
determination and the November 1999 SOC informed the
appellant of the information and evidence needed to
substantiate this claim. Furthermore, in a June 2002 letter,
the RO informed the appellant of the VCAA. It specifically
notified the appellant of VA's duty to notify her about her
claim, VA's duty to assist her in obtaining evidence, what
evidence was still needed from the appellant, what the
appellant could do to help with her claim, where the
appellant could send information, what the evidence had to
show to establish entitlement, and where to contact VA if she
had any questions.
Second, VA has a duty to assist the appellant in obtaining
evidence necessary to substantiate the claim. However, VCAA
is not applicable to claim for CUE and accrued benefits are
based on the evidence on record or constructively of record
at time of death.
In the circumstances of this case, a remand would serve no
useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540,
546 (1991) (strict adherence to requirements in the law does
not dictate an unquestioning, blind adherence in the face of
overwhelming evidence in support of the result in a
particular case; such adherence would result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(remands which would only result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the
veteran are to be avoided). VA has satisfied its duties to
notify and to assist the appellant in this case.
Upon the death of a veteran, periodic monetary compensation
under law administered by the Secretary to which an
individual was entitled at death under existing ratings or
decisions, or those based on evidence in the file at the date
of death, and due and unpaid for a period of not more than
two years prior to death, may be paid to the extent necessary
to reimburse the person who bore the expense of last sickness
and burial. 38 U.S.C.A. § 5121 (West 2002); 38 C.F.R.
§ 3.1000 (2002).
PTSD
In Jones v. West, the United States Court of Appeals for the
Federal Circuit construed 38 U.S.C.A. § 5121 together with 38
U.S.C.A. § 5101(a) (West 1991) and concluded that in order
for a surviving spouse to be entitled to accrued benefits,
the veteran must have had a claim pending at the time of his
death for such benefits or else be entitled to them under an
existing rating decision. The veteran died May 1998, prior
to a decision by the RO regarding his claim for service
connection for PTSD in April 1998. Accordingly, the claim
was pending at the time of his death.
The law is clear that once a veteran dies, the record
evidence may result in the award of accrued benefits, but not
in service-connected benefits for the estate. See Haines v.
West, 154 F.3d 1298 (1998). The Court in Haines described
the accrued benefits provisions as "a narrowly limited
exception to the general rule that a veteran's claim for
benefits does not survive the veteran." See 154 F.3d at
1300.
Under 38 U.S.C.A. § 5121(c), the only requirement imposed
regarding a claim for accrued benefits is that the
application "must be filed within one year after the date of
death." 38 U.S.C.A. § 5121(c) (West 1991). The Board notes
that the appellant in this case met the statutory requirement
by submitting a claim for accrued benefits shortly after the
veteran's death.
The Board further notes that the Court has held that a
survivor's accrued benefits claim asserting that a veteran's
disorder is service-connected is derivative in nature and
necessarily incorporates any prior adjudications of the
service-connected issue in claims brought by the veteran.
See Zevalkink v. Brown, 6 Vet. App. 483, 492 (1994).
Additionally, the awarding of accrued benefits is backwards
in nature and compensates for the underpayment of benefits.
Martin v. Brown, 6 Vet. App. 272, 274 (1993). It thus
becomes the job of the Board to determine whether the
veteran, prior to his death, was entitled to VA benefits not
previously granted him. Thus, the appellant here may prevail
on her accrued benefits claim only if it can be established
that the veteran was entitled to periodic monetary benefits
for service connection for PTSD based on evidence in the file
at date of death. In this regard, the RO granted
compensation for malignant growths of the respiratory system
and the brain, each evaluated as 100 percent disabling as of
April 16, 1998. Special monthly compensation was also
awarded. Therefore, it is extremely unlikely that a grant of
service connection for PTSD would result in any potential
monetary benefit (periodic award) as of April 16, 1998. The
veteran's claim to reopen was received in April.
Therefore, if the date of receipt of this claim and the
effective date of award were controlling the Board would
dismiss, as there is no actual or potential benefit for an
award. However, as there had been a prior denial of service
connection for PTSD in April 1996 and the subsequent receipt
of service records, there is the potential application of
38 C.F.R. § 3.156 (c).
As noted, there had been a prior denial of service connection
for PTSD. That decision is final. At that time, there was
evidence of a diagnosis of PTSD, but not recognized
confirmation of a stressor. Since that determination, the RO
obtained the veteran's service medical records, personnel
records and unit histories. Such evidence is new and
material under any circumstance. 38 C.F.R. § 3.156 (2002).
In order to establish service connection for a claimed
disability the facts must demonstrate that a disease or
injury resulting in current disability was incurred in active
military service or, if pre-existing active service, was
aggravated therein. 38 U.S.C.A. § 1110 (West 2002);
38 C.F.R. § 3.303 (2002).
Regulations also provide that service connection may be
granted for any disease diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disease was incurred in service.
38 C.F.R. § 3.303(d) (2002).
Service connection for PTSD requires medical evidence
establishing a diagnosis of the disorder, credible supporting
evidence that the claimed in-service stressor(s) actually
occurred, and a link, established by medical evidence,
between current symptomatology and the claimed in-service
stressor. 38 C.F.R. § 3.304(f).
The evidence necessary to establish the occurrence of a
recognizable stressor during service to support a diagnosis
of PTSD will vary depending upon whether the veteran engaged
in "combat with the enemy." See 38 U.S.C.A. § 1154(b) (West
1991); 38 C.F.R. § 3.304(f); Zarycki v. Brown, 6 Vet. App.
91, 98 (1993). Participation in combat, a determination that
is to be made on a case by case basis, requires that the
veteran have personally participated in events constituting
an actual fight or encounter with a military foe or hostile
unit or instrumentality. See VAOPGCPREC 12-99 (October 18,
1999). If VA determines the veteran engaged in combat with
the enemy and his alleged stressor is combat-related, then
his lay testimony or statement is accepted as conclusive
evidence of the stressors occurrence and no further
development or corroborative evidence is required - provided
that such testimony is found to be "satisfactory," i.e.,
credible and "consistent with circumstances, conditions or
hardships of service." See 38 U.S.C.A. § 1154(b); 38 C.F.R.
§ 3.304(f); Zarycki, 6 Vet. App. at 98. If, however, VA
determines either that the veteran did not engage in combat
with the enemy or that he did engage in combat, but that the
alleged stressor is not combat related, then his lay
testimony, in and of itself, is not sufficient to establish
the occurrence of the alleged stressor. Instead, the record
must contain evidence that corroborates his testimony or
statements. See Zarycki, 6 Vet. App. at 98.
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
equipoise, with the appellant prevailing in either event, or
whether a preponderance of the evidence is against a claim,
in which case, the claim is denied. Gilbert v. Derwinski, 1
Vet. App. 49 (1990).
The veteran's DD Form 214 indicates that his awards include
the National Defense Service Medal, the Vietnam Service Medal
with One Star, and the Vietnam Campaign Medal. His military
occupation specialty (MOS) was a Field Radio Operator. The
veteran's DD 214 does not show that he received any citations
or awards for participation in combat with the enemy.
Treatment records in the file demonstrate that at the time of
a March 1991 VetCenter intake evaluation, it was the intake
person's assessment that the veteran had apparent PTSD based
upon combat history. The veteran's symptoms included
hypervigilance, sleep disturbance, intrusive thoughts,
psychic numbing, and isolation/alienation. At the time of a
March 26, 1991, VetCenter visit, an assessment of chronic
PTSD exacerbated by the stimuli of the Gulf War was made.
In an undated statement in support of claim, the veteran
reported that he served in Vietnam from August 1969 to
September 1970 with Mike Co. Bn. 5th Regiment 1st Marine
Division. He stated that his duties were a field radio
operator and forward air controller. In support of his
claim, the veteran submitted a photocopy of an article
entitled "U. S. Marines in Vietnam High Mobility and
Standdown"
In a March 1998 statement in support of claim, the veteran
indicated that he served with the United States Marine Corps
from January 1969 to January 1971. He stated that he served
in Vietnam with M Company 3rd Battalion 5th Marines 1st Marine
Division from either July or August 1969 to either August or
September 1970. He noted that he was assigned to an infantry
company as a radio telephone operator assigned to combat
patrol duty. He reported that among the combat areas he was
assigned to were Liberty Bridge, Arizona, Hill 65, An Hoa, LZ
Ross, and LZ Baldy. His primary responsibility was to handle
field communications, i.e., calling for medivac helicopters
etc.
Embarkation Slips received demonstrate that the veteran
arrived in Vietnam on September 20, 1969, and departed on
September 7, 1970. In the Combat History-Expeditions-Awards
record portion of the veteran's personnel records, it was
noted that he had participated in counter insurgency
operations in the Quang Nam Province from September 21, 1979,
to September 6, 1970. Personnel records also verify that the
veteran's primary duty during his Vietnam tour was that of a
field radio operator for the H&S Co., 3rd Bn., 5th Mar 1st Mar
Div.
In July 1999, the Marine Historical Center forwarded copies
of records of the Headquarters and Services Company, 3rd
Battalion, 5th Marines for the period from September 1969 to
September 1970.
In the narrative summary portion of the report, it was noted
that from September 1, 1969, to September 13, 1969, the
Division was conducting clear and search operations. There
were 31 NVA/VC killed. From September 13, 1969, to September
30, 1969, the Division was responsible for the security of
Liberty Bridge and Liberty Road. There were numerous
friendly KIAs WIAEs, WIANEs, DOWs, and NBCs. There were also
numerous enemy casualties. The Division also participated in
numerous search and clear operations in October 1969. During
this period, it was noted that the enemy continued small
scale harassing attacks by fire, increased road mining, and
SFD activities. There were also friendly and enemy
casualties during this time period. In November 1969, the
Division continued to conduct offensive operations in the
zone including securing Liberty Bridge, Liberty Road, and the
An Hoa Combat Base. Small scale attacks were again reported
and there were numerous friendly and enemy casualties.
During the month of February 1970, the Battalion conducted
extensive patrolling and ambushing activities throughout the
Thuong Duc Corridor. In March 1970, enemy activity
increased. There were numerous friendly and enemy
casualties.
In Cohen v. Brown, 10 Vet. App. 128 (1997), the Court noted
that VA had adopted a final rule in October 1996, effective
November 7, 1996, revising 38 C.F.R. §§ 4.125 and 4.126. The
effect of these revisions was to change the diagnostic
criteria for mental disorders from the Diagnostic and
Statistical Manual for Mental Disorders (DSM), third edition
and the third edition, revised, to the fourth edition (DSM-
IV). The Court found that DSM-IV altered the criteria for
assessing the adequacy of the stressor from an objective to a
subjective basis. The Court further found that where there
was "undisputed, unequivocal" diagnoses of PTSD of record,
and the Board did not make a finding that the reports were
incomplete, the adequacy of the stressor had to be presumed
as a matter of law. In West v. Brown, 7 Vet. App. 70 (1994),
the Court held that the sufficiency of the stressor is a
medical determination, and therefore adjudicators may not
render a determination on this point in the absence of
independent medical evidence.
The veteran did not provide specific names as to people
injured or killed. However, based upon the military history
relating to 5th Marine Division, it is likely that the
veteran would have been exposed to combat. The division to
which the veteran was assigned was involved in many search
and clear missions. Moreover, the historical records of the
unit to which the veteran was attached, reveal that there
were many casualties, both friendly and enemy while the
veteran was stationed in Vietnam.
The Board is presented with a diagnosis of PTSD, not based on
a single stressor, but rather a combination of events that
the veteran reported happened during service. The Board must
keep in mind the provisions of 38 U.S.C.A. § 1154(a) (West
1991). Regardless of section 1154(a) or 1154(b), the veteran
was a Marine, he was assigned to a field unit, and his unit
clearly engaged in combat suffering casualties. The stressor
is accepted. The Board also concludes that the service
medical records, the service personnel records and the unit
histories were either in constructive possession of VA or
constitute supplemental official reports within the meaning
of section 3.156(c). Regardless, following the 1996
decision, there is a remarkable lack of date stamps or other
indicia of when documents were associated with the file. Any
doubt regarding when a document was associated with the file
is resolved in favor of the appellant.
Therefore, based on the nature and circumstances of service
during Vietnam and the diagnosis of PTSD, service connection
is warranted.
CUE in the April 1996 Rating Determination
The facts in this case are not in dispute. An April 1996
rating decision denied service connection for PTSD. The
veteran was informed of that rating decision and appellate
rights in May 1996 and did not appeal.
The veteran died in May 1998. The RO received this
application in November 1998, which is predicated upon a
challenge to the April 1996 rating determination on the basis
of CUE. Previous determinations that are final and binding
will be accepted as correct in the absence of CUE. Where
evidence establishes such error, the prior decision will be
reversed or amended. For the purpose of authorizing
benefits, the rating or other adjudicative decision which
constitutes a reversal of a prior decision on the grounds of
clear and unmistakable error has the same effect as if the
corrected decision had been made on the date of the reversed
decision. 38 C.F.R. § 3.105(a).
The general rule is that a veteran's claim for benefits does
not survive the veteran, although a survivor may seek payment
of those benefits which were "due and unpaid" at the time of
the veteran's death. 38 U.S.C.A. § 5121(a); see Zevalkink v.
Brown, 102 F.3d 1236, 1244 (Fed. Cir. 1996). However, after
a veteran's death, the claim is no longer one for disability
compensation but rather one for accrued benefits. This
statutory scheme for payment of accrued benefits provides a
mechanism for survivors to recover certain benefits, where
entitlement has already been established or can be readily
established based on evidence in the file at the date of the
veteran's death. Zevalkink, 102 F.3d at 1244.
Regarding the statutory provision for CUE claims, the United
States Court of Appeal for the Federal Circuit (Federal
Circuit) and the United States Court of Appeals for Veterans
Claims (Court) have both determined that there is nothing in
that statutory scheme that provides for another person, even
a survivor, to seek correction of a decision on a veteran's
claim. 38 U.S.C.A. § 5109A; Haines v. West, 154 F.3d 1298,
1301 (Fed. Cir. 1998). The statutory provisions at
38 U.S.C.A. § 5109A allow consideration of a CUE claim as to
any VA benefits decision. However, the Court and the Federal
Circuit have stated that section 5109A provides nothing more
than a procedure for a claimant to seek reconsideration of a
limited type of error in a prior decision, and the provision
cannot be read as providing a procedure for adjudication or
payment of veterans' benefits to survivors. Id. at 1302; see
also Haines v. Gober, 10 Vet. App. 446 (1997). The Federal
Circuit found that the statutory scheme that provides for CUE
claims expressly provides that a survivor has no standing to
request review of a decision affecting the disability
benefits of a deceased veteran on the ground of CUE; the
survivor is not the disability benefits claimant. Haines,
154 F.3d at 1301.
The decisions of the Federal Circuit and the Court of Appeals
for Veterans Claims are binding on the Board. The Haines
decision in both courts found that an appellant cannot bring
a claim based upon CUE in a decision that denied a deceased
veteran's claim. Thus, the appellant's claim that she is
entitled to accrued benefits based on CUE in the April 1996
rating determination that denied service connection for PTSD
fails as a matter of law. The claim must be denied on the
basis of absence of legal merit. See Sabonis v. Brown, 6 Vet.
App. 426 (1994).
In denying the appellant's claim, the Board acknowledges that
the Board has disposed of the claim in a manner that differs
from the rationale cited by the RO. However, any change in
analysis is not prejudicial, and a remand for a different
analysis would serve no purpose. See Bernard v. Brown, 4
Vet. App. 384, 394 (1993) (the Board must consider whether
the claimant is prejudiced when the Board addresses a
question that has not been addressed by the RO; and the Board
must set forth an adequate statement of reasons and bases for
its decision). See also Sabonis, 6 Vet. App. at 430 (remands
which would only result in unnecessarily imposing additional
burdens on the VA with no benefit flowing to the claimant are
to be avoided). As noted above, under the cited legal
authority, a survivor has no standing to request review of a
decision affecting the disability benefits of a deceased
veteran on the ground of CUE. In view of the foregoing, the
claim must be denied.
ORDER
Entitlement to service connection for PTSD, for the purpose
of accrued benefits, is granted.
The claim for service connection for PTSD for accrued
benefits purposes on the basis of clear and unmistakable
error in an April 1996 rating determination is denied.
H. N. SCHWARTZ
Veterans Law Judge
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.